STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MALLARD COVE CONSTRUCTION, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 90-4456
) STATE OF FLORIDA, DEPARTMENT OF HEALTH ) AND REHABILITATIVE SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
The final hearing in the above-styled matter was heard pursuant to notice given by Charles C. Adams, assigned Hearing Officer of the Division of Administrative Hearings. Authority for the conduct of the hearing is set forth in Section 120.57(1), Florida Statutes. The hearing date was October 4, 1990. It was held in Tallahassee, Florida.
APPEARANCES
FOR PETITIONER: Authorized Representative,
Rod Moeller
Mallard Cove Construction 14261 Buckhorn Road
Tallahassee, FL 32312
FOR RESPONDENT: John L. Pearce, Esq.
HRS District 2 Legal Office 2639 North Monroe Street Suite 125-A
Tallahassee, FL 32399-2949 STATEMENT OF THE ISSUES
The issues in this case concern the entitlement of the Petitioner to the grant of a variance allowing the installation of an on-site sewage disposal system at Lot 4, Block X, Killearn Lakes Unit I, Leon County, Florida. See Section 381.272(8), Florida Statutes, and Section 10D-6.045, Florida Administrative Code.
PRELIMINARY STATEMENT
This recommended order is being entered in consideration of the testimony of the witnesses who appeared at the formal hearing and upon review of the exhibits presented by the parties.
A transcript was not prepared.
The parties availed themselves of the opportunity to present their respective positions in writing. The Petitioner's written presentation included proposed fact finding and a recommended disposition. Respondent presented a proposed recommended order. The fact finding set out in the two proposals is addressed in an Appendix to the recommended order.
FINDINGS OF FACT
The property upon which Petitioner seeks a variance from the normal requirements for attaining a permit to install an on-site sewage disposal system is found in Leon County, Florida. Specifically, it is located at Lot 4, Block A, Killearn Lakes Unit I. The relative position of this lot in the subdivision is depicted within Petitioner's Exhibit 1 and Respondent's Exhibit 2 admitted into evidence. Respondent's Exhibits 3 through 5 are photographs of the site.
Petitioner intends to construct a 1,200 square foot residence. As the photographs depict, some preparation has commenced to the extent of lot clearing and other site work where the home would be constructed.
Killearn Lakes Unit I is a pre-1972 subdivision. When the development commenced, it was anticipated that a community sewer system would be utilized, as contemplated by the plans submitted in April, 1971. Subsequently, some lots within the Killearn Lakes Unit I were allowed to be developed with the use of on-site sewage disposal systems, namely septic tanks. There are 150 lots in that category. In 1979, with the advent of certain rules under Chapter 10D-6,
Florida Administrative Code, the development was allowed to proceed on the basis of four septic tanks per acre.
Over time, Killearn Lakes Unit I experienced a history of failures with on-site sewage disposal systems. The failures were promoted by problems with the "sheet flow" drainage system and its patterns of dispersion of storm water runoff, problems of soil permeability and abnormally high wet season water tables, referred to as perched water tables. This resulted in sewage backing up into homes and flowing out onto the ground in the yards of the residences, into streets and onto adjacent neighbors' lots. The problems experienced were widespread within the Killearn Lakes Unit I. This seepage of raw sewage presented a health hazard, as it would on any occasion.
Among the residences confronted with this dilemma was Lot 5, Block X, adjacent to the subject lot. Persons residing in that home had to undertake alternative means of on-site sewage disposal to have that system function properly. This included relocation of the apparatus, mounding, use of an aerobic system, and use of pumps to insure that the waste being disposed did not back up into the conveniences within the home. Witnesses who appeared at the hearing described the series of corrections in some detail. Those witnesses included a former owner of that residence and others who had a technical understanding of the problems in that system.
The problems in Killearn Lakes Unit I related to on-site sewage disposal systems became so extreme that the Leon County Commission declared a moratorium on the installation of on-site septic tanks in that development. This occurred in 1987.
In order to better understand the problems in the Killearn Lakes subdivision, to include Killearn Lakes Unit I, a study was commissioned. That report is referred to as Killearn Lake Waste Water Disposal Study of June, 1987. A copy of the report is found as Respondent's Exhibit 6 admitted into evidence.
It was prepared for the Leon County Board of County Commissioners and prepared by the Leon County Public Health Unit with the assistance of the Leon County Department of Public Works, Leon County Building Department, Ochlockonee River Soil and Water Conservation District, Northwest Florida Water Management District, Tallahassee-Leon County Planning Department, Florida Department of Health and Rehabilitative Services, and Florida Department of Environmental Regulation. Some of the highlights of that report concerned the observation that the septic tank systems do not work adequately and that the more systems that are placed the greater the problems. It noted that the nature of the drainage system in this area is a contributing factor to the failures. The soil's poor permeability, relating to the Dothan series of soils in the area which have slow permeability, contributed to the problem. Perched water tables were found above the expected levels for the wet season water tables. They also presented a problem, as did excessive slopes in some areas. In particular, it was noted that 80% of the lots sampled in Killearn Lakes Unit I had severe limitations on the use of on-site sewage disposal systems. Ninety-three per cent of the lots sampled in Block X received excess runoff from other lots and roads at higher elevations. It was noted that French or curtain drains alone would not significantly reduce perched water table complications because of the low permeability of the soils. It was reported that the overall housing density of Killearn Lakes is not particularly high, but the individual lots are small, approximately 1/4 acre in size. This, taken together with the fact that the "sheet flow" concept of storm water management contemplates that the runoff will cascade across the terrain conforming to its contours, means that some small lots will be inundated. This uncontrolled runoff contributes to septic tank problems in that the tanks fail when the soils around them become saturated.
The report notes that if there was a different designed drainage system, the impact on septic tanks would be less. The report notes that if something is not done to modify storm water runoff, drainage problems will persist.
Consequently, septic tank failures will continue to occur.
Concerning the water tables, the soil testing, which was done in Killearn Lakes Unit I, in which the predominant soil is Dothan type, demonstrated that the borings which located mottling of the soils at the expected level of the wet season water table were inaccurate. These indicators did not correspond to reality in that the true water tables were found 12-20 inches above the expected level of the average high water, as seen in the mottling. This phenomenon was revealed in 42% of the lots evaluated which had Dothan soils.
The report recommended, among other measures, that no new sewage disposal system permits be issued in Killearn Lakes Unit I until a storm water system had been constructed and demonstration made that the system would collect storm water and thereby lower the perched water table on specific lots under review.
The ultimate response to the question of permits for on-site sewage disposal systems in Killearn Lakes Unit I was spoken to in a Resolution of July 14, 1987 entered by the Leon County Board of County Commissioners. A copy of the resolution may be found as Respondent's Exhibit 1 admitted into evidence.
It was resolved that the permits for on-site septic disposal systems be reviewed by the Leon County Public Health Unit on a case-by-case basis in accordance with criteria announced at Chapter 10D-6, Florida Administrative Code. This effectively lifted the moratorium. The subject request for installation of an on-site sewage disposal system was reviewed in keeping with the policy decision set forth in the resolution.
Respondent's Exhibit 6 admitted into evidence includes a copy of a survey made by the Homeowners' Association for Killearn Lakes, also admitted as Petitioner's Exhibit 1. As part of the study commissioned by the Leon County Board of County Commissioners, it has some relevance in portraying the dimensions of the problem. Those dimensions are better understood by resort to the color scheme which is found in Petitioner's Exhibit 1. It depicts the problem lots in red color, those lots without problems in green color, and the lots upon which no report was made in orange color, as well as vacant lots, to include the subject lot, which have no color scheme. This latter category indicates no participation in the survey. The door-to-door personal survey conducted by Rod Moeller and testified about at hearing does not diminish the impression of the seriousness of the problem with on-site sewage disposal system failures in Killearn Lakes Unit I, which the 1987 study by the Leon County Board of County Commissioners identified. This survey by Mr. Moeller was in a limited area, more specifically related to the portion of Killearn Lakes Unit I nearby the subject lot. The findings of the 1987 study commissioned by the Leon County Board of County Commissioners are accepted as accurate.
Eanix Poole, Administrator of Environmental Health for the State Health Office testified at the hearing. He pointed out that the failure rate in the subdivision under question for on-site sewage disposal systems is 25%, as contrasted with the statewide rate of less than 1/2%. He identified the fact that those failures relate to backups within the home and seepage onto the ground. He verified that these events constitute health problems, especially given the number of failures. He sees the lot in question here as being particularly vulnerable to problems given the drainage patterns and its location at the bottom of two hills. The lot in question receives runoff from the two adjacent lots as well. Mr. Poole sees the subject lot as more vulnerable in the wet season and does not believe that any alternatives that are available for placement of the system on the site would sufficiently alleviate the potential failure of the system to make it a successful arrangement. What he sees is a lot in the path of a natural drainage of tremendous quantities of storm water runoff, coupled with poor soil conditions related to soil absorption or permeability in an area where on-site sewage disposal systems have failed. He remarks that dry soils are needed to treat the sewage and that treatment cannot take place in a saturated soil environment. The effects of seepage of the sewage, according to Mr. Poole, is one which can degrade ground water. Mr. Poole is also concerned that the installation of the proposed on-site sewage disposal system above ground will have an adverse impact on the adjacent lots, one of which has already experienced problems. That refers to Lot 5, Block X. These observations by Mr. Poole, as reported, are accepted.
Raymond Collins, an environmental administrator with the Respondent's health program office, also testified at the hearing. He is intimately aware of the problems in Killearn Lakes Unit I. Those problems began to occur in the winter of 1986 and continued into 1987. This related to problems with toilets and the seepage of effluent which was running onto people's property and into the streets. He notes a similar failure rate in Killearn Lakes Unit I to that observed by Mr. Peel when contrasted with the experience statewide. In the aforementioned period he received calls and reports from homeowners concerning system failures. In effect what was happening was that the on-site drain fields in Killearn Lakes Unit I would not accept more input and the raw sewage would bubble up and leach out onto the ground. He personally observed a dozen sites which had failures. He was responsible for the coordination of the July, 1987 study which has been mentioned. As a result of that study one of the steps which he took was to advise that staff investigating the permit application requests should elevate the estimation of the wet season water table by 12-20
inches. Mr. Collins agrees with the recommendation of the individual who was assigned to evaluate the application for permission to install an on-site sewage disposal system at the subject lot, who recommended that the application be turned down.
Mr. Collins' description of the experience at Lot 5, Block X, related to his knowledge that the initial system had been replaced with an aerobic system, which also proved to be an inadequate on-site sewage disposal system. In 1988, he went to the home of the person living on that lot, and the aerobic system was not working. There was a light rain on that day, and there were
problems in the drain-field area. When a soil boring was made to a depth of two feet effluent poured out. The perched water table had risen to a point in the bottom of the drain field, such that when a hole was punched, it provided a conduit for pressure to be relieved. The drain field that was experiencing this problem was not the original drain field. It was a replacement drain field.
The drain field being observed was in the front of the lot, right below the ground. The suggestion to alleviate the problem was to move the drain field to the side of the yard and elevate it and install a series of small-diameter pipes. A pump was also needed to move effluent into the drain field, thus, avoiding a backup of the system into the home. He is unaware of any recent failures in the system at Lot 5, Block X.
Mr. Collins emphasized the need for soil to remain unsaturated to provide effective treatment and that 24 inches of unsaturated soil is the minimum amount which would be acceptable.
Mr. Collins commented about the nature of the subject lot and the fact that other lots drain through it.
Mr. Collins commented that the design of the proposed septic tank does not assure success in the treatment of the waste disposed. Unlike the expert of the Petitioner, Mr. Peel, the problem is not that solids are blocking up the system. It is the failure of the soils to accept the volume of water which is being released from the chambers of the septic tank into the drain field. Mr. Collins does not believe that the use of water-saving appliances in addition to the limited size of the home to be built on the subject lot, installation of an aerobic system, and installation of an above-ground system, as proposed, would be successful and not pose a health risk from system failure. The problems would continue to be drainage patterns and poor soils. His remarks, as reported, are accepted as accurate.
Terese A. Hegg, Environmental Specialist I with the Respondent's Leon County Public Health Unit, reviewed the application for variance to install the on-site sewage disposal system. She was familiar with the history of problems in Killearn Lakes Unit I before undertaking this assignment and has made more than 50 evaluations in that development. She observed that the "sheet flow" drainage of storm water does not provide reasonable management because it does not drain normally. She is aware that the wet season water table is as much as
20 inches above the normal indicators, as seen through mottling. Her analysis of this site is under the auspices of those requirements announced in Chapter 10D-6.044, Florida Administrative Code, having in mind that the subdivision plat was made before 1972. This includes an examination of the soil characteristics, history of flooding, and water table evaluations. At this site, she noted the poor permeability of the soil. She did soil borings to confirm the nature of the soils and to identify the water table. She took into account the abnormal perched water table that is above what the mottling would indicate as being the wet season water table. Ms. Hegg is concerned that the system on the adjacent
lot, which is now functioning adequately, would not function adequately if the subject system was installed. She noted that the drainage pattern from the neighboring lots was toward the subject lot and that water would come from the left and the right lots adjacent to this lot, corresponding to Lots 5 and 3 as you face them. The drainage pattern would then proceed beyond Lot 4 and into a green area. In making her assessment of this application, she was aware of the problems with the on-site sewage disposal system at Lot 5, Block X. The appearance of saturated soil in the entire length of the boring and standing water on the lot is an indication of problems with percolation. The effluent will flow out and onto the ground if these soils are saturated. From her observations and based upon the history of Killearn Lakes Unit I and its failures regarding on-site sewage disposal systems, Ms. Hegg does not believe that the proposed system would successfully address sewage treatment and would promote a risk of on-site sewage disposal system failures for adjacent lots.
Ms. Hegg acknowledged that the storm water flows could be diverted; however, she points out that the subsurface water cannot be diverted. Her account of this site and the acceptability of the request for variance as reported is accepted as accurate.
Given the soil conditions and the wet season water table expected at this site, the proposed system will not present an adequate unsaturated soil depth for treatment of the sewage and untreated sewage may be expected to seep or leach out onto the ground.
On May 22, 1990, Mr. Collins had written to Dr. Richard G. Hunter, Assistant Health Officer for Environmental Health, recommending the denial of the variance request. A copy of that correspondence may be found as Respondent's Exhibit 7 admitted into evidence. It details reasons which are similar to those described in this Recommended Order. As a consequence, even though the Advisory Review Variance Board had looked with favor upon the request for variance, that variance was denied by action of Dr. Hunter on May 30, 1990, which relied upon the insights of Mr. Collins, as described in his May 22, 1990 correspondence. A copy of the letter of denial may be found as Respondent's Exhibit 8 admitted into evidence. The purpose of this hearing was not to examine whether Respondent had abused its discretion in denying the variance. The reason for the hearing was to allow the parties to present their points in an adversarial setting, which allowed each party to explain its viewpoint anew. That was done, and the analysis provided by this recommended order ensued.
In deciding the facts, these representations have been made with due regard to the remarks of James Earl Peel, an expert in the design of on-site sewage disposal systems, who had on his staff, Gary L. Wood, P.E. His methods in analyzing the issue of the suitability of the installation of an on-site sewage disposal system at the subject site do not coincide with the methods contemplated in Chapter 10D-6, Florida Administrative Code, which controls. This is especially significant in his approaches to soil characteristics and location of the wet season water table. As noted above, his belief that the problem is one of distribution of solids from the septic tank into the drain field overlooks the more significant problem of water volume discharge from the septic tank into the drain field. In fact, Mr. Peel indicated that he is unfamiliar with the requirements of septic tank design, as described in Chapter 10D-6, Florida Administrative Code. On balance, Mr. Peel's reports, in Petitioner's Exhibits 3 and 4 admitted into evidence and his in-hearing testimony, do not persuade that the system he recommends can be successfully operated at the subject site. His presentation and the overall presentation of
Petitioner do not create a reasonable expectation that the system will not fail and create health hazards for the residents of Lot 4, Block X, and others in the vicinity.
It is recognized that this lot owner faces a hardship that was not caused by Petitioner. It is also recognized that, pursuant to the stipulation of the parties, there is no intention by any entity to install a community system of sewage disposal. It is further recognized that there are no alternative methods that would seem to be successful in addressing the problem of the treatment of the sewage, as related in the previous findings. On the other hand, the discharge that could be expected from this subject system would bring about a condition in which the effluent presented a health risk to this applicant and other members of the public and has the potential to significantly degrade the ground or surface waters, although this latter circumstance has not been documented on other occasions and was not found to exist in the July, 1987 study commissioned by the Leon County Board of County Commissioners. In that report, it was specifically found that the surface water had not been compromised by the on-site sewage disposal system failures described in the overall report.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding, in accordance with Section 120.57(1), Florida Statutes.
It is the burden of the Petitioner to establish that it is entitled to the grant of a variance for permitting of an on-site sewage disposal system. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1978). To satisfy this proof, the Petitioner must show that, as described in Section 381.272(8), Florida Statute: (1) the hardship was not caused intentionally by the action of the applicant; (2) no reasonable alternative exists for the treatment of the sewage; and (3) the discharge from the individual sewage disposal system will not adversely affect the health of the applicant or other members of the public or significantly degrade the ground water or surface waters. Petitioner must also comply with the requirements of Rule 10D-6.045, Florida Administrative Code, associated with the attainment of a variance. That rule speaks to the perception that this relief designed to prevent excessive hardship is only available in those instances involving minor deviations from established standards. The applicant must be prepared to clearly show that the hardship that it has experienced in trying to dispose of the sewage is not of its making. The rule as well as the statute, goes on to describe that in instances where the lot was platted prior to 1972, and the subject lot was, Respondent shall give special consideration to the request, assuming the soil conditions, water table elevation, and setback provisions are satisfactory.
The facts reveal that the Petitioner did not promote the hardship that it suffers in addressing the treatment and disposal of the sewage. It is shown that no alternative to on-site treatment exists. Petitioner has failed to show that the project calls for a minor deviation from established standards.
Petitioner has failed to show that the system will not adversely affect the health of the applicant or other members of the public. In fact, the overall proof at hearing points to health problems by the expected seepage of raw effluent onto the lot and surrounding lots. These events have occurred historically and can be expected here.
Some of the standards that have application and from which the Petitioner may be expected to deviate in more than a minor fashion, are those found at Rule 10D-6.046, Florida Administrative Code, in which sewage waste effluent from an individual's on-site sewage disposal system cannot be discharged onto the ground surface. Within that same rule are references to circumstances in which an on-site sewage disposal system may be utilized. This is an instance in which use of the on-site sewage disposal system is at odds with those recognized categories. There are problems related to site evaluation criteria announced at Rule 10D-6.047, Florida Administrative Code. The use of an alternative on-site sewage disposal system, as contemplated by Rule 10D- 6.049(3), Florida Administrative Code, viz., a mound system, is not a reasonable alternative. The approaches of the consultant hired by the Petitioner to design the proposed system are at odds with Rule 10D-6.057, Florida Administrative Code, relating to percolation test procedures.
In summary, the Petitioner has failed to establish its entitlement to a variance from the normal permit requirements in furtherance of its attempt to gain permission to install the on-site sewage disposal system it identified at hearing.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore,
RECOMMENDED that a Final Order be entered denying Petitioner's request for variance from permit requirements and permission to install an on-site sewage disposal system at Lot 4, Block X, Killearn Lakes Unit I.
DONE AND ENTERED this 20th day of November, 1990, in Tallahassee, Leon County, Florida.
CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings
this 20th day of November, 1990.
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4456
The following discussion is given concerning the proposed facts of the parties:
In the discussion of the testimony of Mr. Poole, the relevant portions of that testimony are reflected in the facts found in this recommended order.
Under the heading of testimony said to be attributable to Ms. Hegg, at paragraph 1, while it is recognized that a system might be installed that might not call for diversion of storm water onto adjacent neighbors' properties, the problem on site would remain and would be sufficient reason to reject the application. Moreover, it is not clear that it is the intention to install a system that would divert storm water from adjacent properties.
Paragraph 2 under this heading is rejected in its notion that storm water would not have an influence on the proposed system.
Paragraph 3 is rejected.
Paragraphs 4 and 5 do not lead to the conclusion that sufficient unsaturated soils would be available for the treatment of disposed sewage during the wet season, nor does the representation at paragraph 6.
Paragraph 7 under that heading is contrary to facts found.
The paragraphs under the reference to James Earl Peel, in those five paragraphs, while accurately portraying the opinion of Mr. Peel and Mr. Wood, does not lead to the conclusion that the application should be granted.
Under the heading "Rod Moeller" in the first paragraph, the information provided at hearing and under weather reports does not satisfactorily establish what the rainfall circumstance may have been at the subject property 72 hours before January 24, 1990, as referred to in paragraph 1, nor can it be said that the rain experienced in the overall area contemplated by the attached weather report to the argument by Petitioner was a 25-year storm event. The comment at paragraph 3 under this category that the on-site sewage disposal systems in neighboring lots are functioning fine since modifications in the advent of hurricane "Kate" is contrary to facts found.
Under the heading "Ray Collins" in paragraph 1, this proposed fact has no relevance in that the question is the appropriate function within Killearn Lakes Unit I, not at an undisclosed site away from that area.
Respondent's Facts
These facts are subordinate to facts found.
Copies furnished to:
Sam Power, Department Clerk Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, FL 32399-0700
Linda K. Harris, Esquire General Counsel Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, FL 32399-0700
Rod Moeller, Authorized Representative Mallard Cove Construction
14261 Buckhorn Road
Tallahassee, FL 32312
John L. Pearce, Esquire
HRS District 2 Legal Office 2639 North Monroe Street Suite 125-A
Tallahassee, FL 32399-2949
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which top submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| Nov. 20, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 21, 1990 | Agency Final Order | |
| Nov. 20, 1990 | Recommended Order | Denied request for variance allowing installation of on-site sewage disposal system. |
